Court decides who pays for residential care of accident victims

In Bell v Todd the high court dealt with the difficult question
of who is to fund Part III accommodation provided to the victim of
an accident where compensation is payable to the victim by a third
party.

Dean Bell was a 19-year-old young man provided with
accommodation under section 21 of the National Assistance Act 1948
by South Tyneside council. He had received horrendous injuries as a
four-year-old in a road accident as a result of negligent driving
by the defendant in the action, Todd. Bell now lacked capacity and
his affairs were dealt with by the court of protection and a
receiver.

Todd, through his insurers, had accepted liability for the
injuries and the question of the level of compensation was to be
decided. South Tyneside were of the view that Todd should pay for
the care that Bell now required, and therefore that the level of
compensation should be increased dramatically to include the care
costs for the section 21 accommodation.

Todd’s insurers claimed that any compensation received by Bell
would not qualify to be taken into account by the local authority
when assessing levels of charges for section 21 accommodation and
eligibility for the service, and therefore the local authority
would have to fund the service in any event.

Mr Justice Stanley Burnton was required to make an exhaustive
trawl through the National Assistance (Assessment of Resources)
Regulations 1992.

The judge concluded that where funds derived from a settlement
are administered by the court of protection or are placed in a
personal interest trust, then both the capital and income from such
a trust are excluded in practice for assessing a person’s liability
for charges for section 21 services.

In reaching his decision the judge commented that “if there is
one area of the law which should be clear and accessible it is
social security law”, but that the law is “neither clear nor
accessible”.

The practical effect of the judgement is that court settlements
and awards will not include an amount to reflect the cost of care
provided by local authorities, who continue to find themselves with
the burden of expensive residential care packages which many feel
should be carried by the wrongdoer (in this case the negligent
driver) and his or her insurer.

Stephen Cragg

Doughty Street Chambers